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Regarding Marsh v Alabama: "Recently the case has been highlighted as a potential precedent to treat online communication media like Facebook as a public space to prevent it from censoring speech. However, in Manhattan Community Access Corp. v. Halleck [2019] the Supreme Court found that private companies only count as state actors for first amendment purposes if they exercise 'powers traditionally exclusive to the state.'"

https://en.wikipedia.org/wiki/Marsh_v._Alabama#Subsequent_hi...

Manhattan Community Access Corp. finds that _public access television stations_ aren't subject to the First Amendment, let alone private web hosts.

I mean, as an attorney, I think it would be kind of interesting to see what happened if the Supreme Court ruled that private web hosts in general, or Amazon in particular, are somehow state actors. It would be one of the most practically disruptive-to-society court decisions I can think of, about as interesting to watch as declaring that all warehouses are now public parks. But it's against both recent precedent and common sense.

>or Amazon in particular, are somehow state actors

They operate under the extremely valuable liability protection granted them in section 230 of the CDA.

If I were to take government funds to build my warehouse, there's a pretty decent case that it is at least a public forum, if not a park.

No, that would not be a decent case that your warehouse is a public forum. That's a risible argument. Hundreds of warehouses around the country are built on government funds, none of which are public property. Try telling General Dynamics they're a theme park operator and see how far that gets you.

https://www.csbj.com/premier/businessnews/lawsuit-arises-fro...

>“In sum, the financial participation of the City in the Mall’s progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall,” the court noted. Thus, it concluded the mall’s “open and public areas ... effectively function as a public place,” and that mall owners couldn’t restrict distribution of political pamphlets or signature gathering in the mall’s common areas without violating the state Constitution.

Also, General Dynamics absolutely operates under many contractual obligations in which the federal government directly dictates how they shall run their business.

So does every business. None of that means General Dynamics operates parks.

The Marsh line of decisions you're referring to was disposed of upthread. It's dead, Jim. SCOTUS just last year said you can't expect to pretend social networks operate as public squares; you can only claim functions that are normally exclusively the province of governments.

Section 230 liability protection is the lifeblood of these businesses. That protection is worth billions of dollars. While the courts might be unwilling to go there, Congress should define the obligations that come with such a valuable grant from the public in law. My proposal is that the law should be reformed such that moderation decisions made by section 230 interactive computer services should be logged and reviewable (at the plantiff's expense) in a reputable third party arbitration venue of the service's choosing.

Also General Dynamics must submit to labor rules: https://www.dol.gov/agencies/odep/program-areas/employers/fe...

The basis for title 9 regulation is that universities take Federal grants.

> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.

Amazon isn't the state.

> Marsh v Alabama (1946) - Constitutional protections of 1st and 14th amendments applicable within confines of “town” owned by a private entity.

Which doesn't apply here, as Amazon isn't a company town/acting in a quasi-governmental capacity.

> AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel.

The court ruled on this, and pointed out that the accusations were factually erroneous.

> Moreover, they may or may not have provided sufficient notice (a contract issue).

The court ruled on this, and sided with Amazon (zero notice in this circumstance). If anything Amazon giving them 24 hours was above what the contract required.

I suggest reading the court's opinion before replying, since it undercuts many/most of the points you've tried to make.

There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation.

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> Packinghan v North Carolina (2017) - Access to social media and digital infrastructure cannot be prohibited by the state.

Amazon isn't the state.

- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

> There has been no ruling by the court on the merits of the case.

Correct, but as part of the TRO process, the court is asked to view the merits of the case given what it knows, as part of the determination of granting a preliminary injunction is whether the plaintiff is likely to succeed on the merits.

The courts opinion, quite plainly, is that Parler is unlikely to succeed on the merits:

> In short, Parler has proffered only faint and factually inaccurate speculation in support of a Sherman Act violation.

> Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP.

> Parler has failed to allege basic facts that would support several elements of this claim. Most fatally, as discussed above, it has failed to raise more than the scantest speculation that AWS’s actions were taken for an improper purpose or by improper means.

> IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town.

This argument will fail, for reasons I outlined in a previous comment: https://news.ycombinator.com/item?id=25781560. To briefly reiterate: Marsh v. Alabama concerned a privately owned town using state force (e.g. police) to enforce trespassing law.

But nothing about those rulings prevents the town from putting up a fence and a gate, and banning people from re-entering.

Twitter (and AWS) have a fence and a gate, and a guard who checks your ID anytime you try to enter the area.

> My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

Seems like the core of your argument is that private companies could be subject to constitutional protections if they got too big enough/powerful.

Even ignoring that you've essentially invented a new interpretation of US law/ignored all existing precedent, the fact that AWS (32% market share) isn't a monopoly by either common definition or as defined by federal law completely undercuts even such a novel legal theory.

So you're on the outskirts of both law and basic facts here.

Up and down this thread people are mixing questionable legal ingredients in hopes of finding a recipe that makes sense.

There are separate issues.

i) Antitrust - AWS's behavior may be viewed as an antitrust issue, acting in conjunction with a cartel. A party does not need to have majority market share to function in coordination with other dominate players in order to form a cartel that can manipulate the market. There's case law concerning market manipulation, access to industry and consumer protection issues where parties didn't need to directly coordinate to be considered a cartel.

ii) Practical dependence on service providers for access to critical digital infrastructure. To what extent do we depend on particular services for participation in society and the marketplace will influence the analysis. At what point does a data service provider begin to resemble a common carrier (i.e. cable, phone or internet provider) and in what context would common carrier laws apply?

iii) Contract issues - A few of the foreseeable issues include sufficient notice, contract breach, degree of harm (irreparable harm?), performance obligations.

The judge in this case wrote at some length about the bar Parler's argument needs to clear to make an antitrust claim, and Parler hasn't come close. To make a claim under antitrust, according to the judge who will decide this case, Parler must show (1) the existence of an agreement between Twitter and Amazon somehow regarding Parler, and (2) that the agreement was in unreasonable restraint of trade.

In reality they will be able to do neither thing, because we are all aware that Twitter is not in fact worried about Parler, and that Amazon could give 3/5ths of a flying fuck whether Twitter is worried about Parler regardless. It's a fantasy which has taken on a cloak of plausibility because we have other antitrust concerns about Amazon. But that cloak will not do Parler any good in this trial, nor will our other entirely reasonable concerns about tech consolidation.

Similarly, the judge didn't so much poke holes in Parler's contract claims so much as singlehandedly demolish them, pointing out that Parler's claim about their rights under Amazon's contract were directly contradicted by the very next paragraph after the last one they cited in their complaint.

It would be helpful if you could acknowledge the ruling we're commenting on rather than continuing to argue as if this was entirely abstract. We have some (imperfect) authority to rely on now, in the form of today's ruling.

There has been no ruling by the court on the merits of the case. A TRO is simply a request for injunctive relief, asking the court to compel AWS to reinstate services pending litigation.

Additional briefs following the TRO, replies, nor responses have been filed.

There has been no discovery, no fact finding, no expert witnesses, no oral argument, no jury trial and no opinion. The case has not been adjudicated by the District Court. It has not reached a stage where it can be appealed to the Circuit Court and it certainly has not reached post appellate petition for cert to the Supreme Court.

That's all true, but it's also all stuff you could say without having read the ruling, or acknowledging anything the judge said about Parler's complaint.

It's a short document! It's well written! I recommend it.

Further: some of what you said upthread is contradicted by facts now acknowledged by the court. There may be some barely-colorable argument about antitrust or contracts of adhesion or something, but there is not in fact a colorable argument that Amazon was required to give notice to Parler before terminating them for violation of their AUP; that's in the plain language of the contract, which is on the record in the case, but is also the easily-downloaded AUP a Google search will provide you. Your arguments would be more credible if they acknowledged those facts, rather than implying that they were somehow still up in the air.

> (32% market share) isn't a monopoly

Well, neither was Standard Oil by that definition.

Of course, we already know how to solve the problem of companies having too much leverage due to owning too big verticals - namely to break them up. Not to institute everything-goes rules.

Standard Oil controlled over 90% of production and nearly that percent of final sales.

Courts have never as far as I can find used antitrust on an actor controlling a market at the low level Amazon has here. Can you find such a case?

https://en.wikipedia.org/wiki/Standard_Oil

>- Correct. My point is that Packinghan, viewed in combination with Marsh, provides an interesting lens for issues concerning potentially monopolistic behavior. IF data storage and/or social media can be viewed as critical digital infrastructure, an argument can and will likely be made that the services are tantamount to a digital company owned town. We'll see! Either way it's very interesting and highly relevant to the industry.

How on earth is Amazon kicking them off "monopolistic behavior"? There are literally thousands of hosting providers in just about every country on this planet. Parler was quick to point out none of their infrastructure is in any way tied to Amazon.

"monopolistic behavior" is behavior that leverages a company's dominant position in the market to hurt its competition.

The contrary is the case here. If anything, AWS is helping its competition by giving them Parler's users.

I don't see how Packingham or Marsh are likely to be relevant here.

While the former has some lofty language about central social media has become in society, it's still a decision about state action.

Marsh seems like a reach as well - PragerU tried that and it didn't work. I'm not convinced Parler would fare any better here.

I fail to see how either of these cases you cite are the slightest bit relevant to Parler v AWS.

Judge Rothstein stated it quite plainly in today's order: "It is important to note what this case is not about. Parler is not asserting a violation of any First Amendment rights." (Page 2, lines 4-5)

You may want to add Pruneyard Shopping Center v. Robins (1980) providing a right to first ammendment speech on private property. Although follow on cases have narrowed the prescedent quite a bit.

That’s not what the decision said, you have misread it. It was not the first amendment, but rather the California constitution that required allowing the speech.

The analogies for the digital town/community break down when we consider certain practical and physical barriers that exist in company towns that do not exist in the digital realm. For example, the travel expenses and time required to purchase goods. You could go outside the company town, but it requires much more resources to do so, which is doubly impacted by pay being docked accordingly to bundled company town services (utility, rent, etc.), which traps residents. This is why they have been looked upon unfavorably.

But digital communities do not trap individuals, there is no practical limit except of mental effort to the number of accounts or social media networks a person can simultaneously use. Instead, the costs are borne by the networks themselves, which scales with the number of users.

This is an inversion of the scenario as the public is a passive participant, nothing is forced upon them. This is why I think the argument is not a good fit.

Parler and AWS, as business entities, can only act in their own interests as there is no duty between a corporation and the general public, only their customers through either a uniform or contractual relationship. Wouldn't you agree? It would be dangerous to assume that a corporation has a specific duty to the general public beyond existing customers. That is, AWS only has to deal with Parler, not Parler's customers. That is on Parler.

And I don't think the state enters into this at all.